Supreme Court, Kings County, March 3, 2018

Law Offices of Nada Torabi, New York City, for petitioner.

Zachary W. Carter, Corporation Counsel, New York City, for respondents.

This case raises the issue of what criteria apply for determining whether the Board of Trustees (Trustees) of the New York City Employees' Retirement System (ERS) has conducted an adequate evaluation as to the causation of an NYC correction officer's disability, [*2]where there are conflicting medical opinions as to whether the disability resulted from an injury suffered in the performance of a member's duties or was caused by a non-service-related physical condition. The Trustees is the administrative agency which ultimately decides whether a correction officer is entitled to a performance of duty disability retirement benefit.

Petitioner Matthew Boyd, a correction officer employed by the NYC Department of Correction (DOC), seeks an order annulling the determination of the Trustees, dated May 15, 2016, which denied his application for disability retirement benefits (disability benefits) pursuant to Retirement and Social Security Law § 507-c. Prior to his appointment by the DOC, petitioner passed the physical and mental examination administered by the DOC, which demonstrated that he was mentally and physically fit. In 2006 and 2007, petitioner was assaulted by inmates while on the job and sustained injuries to his shoulders, back and neck. After the first incident, petitioner did not return to work until almost a year later in June 2007. Petitioner's medical records during that year establish that he suffered from significant lower back, neck and shoulder pain, for which he took pain medication and steroid injections. Dr. Michael Weissman, a DOC doctor, in multiple examination reports from 2006 through 2007, stated that petitioner continued to suffer from radiating lower back and neck pain and that he should be on limited duty. Reports from Dr. Stephen Wilson, who treated petitioner after the first incident, indicate that petitioner underwent an electromyography (EMG) and nerve conduction (NC) studies, which revealed evidence of lumbar-sacral radiculopathy, mild sensory-motor polyneuropathy and neuropathy of the wrist (indicative of carpal tunnel syndrome). Radiculopathy is compression of a nerve in the{**60 Misc 3d at 610} spine which results in chronic back pain and restricts movement, and which can be caused by an injury or trauma. (Office of Communications and Public Liaison, National Institute of Neurological Disorders and Stroke, National Institutes of Health, Low Back Pain Fact Sheet [Dec. 2004], available at https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Low-Back-Pain-Fact-Sheet [last updated May 10, 2017]; Martinez-Cepero v Wagner, 586 F Supp 2d 263, 270 [D NJ 2008]; Crosby Marine Transp., LLC v Triton Diving Servs., LLC, 2015 US Dist LEXIS 104122, *13 [WD La, Lafayette Div, Aug. 7, 2015, Civil No. 13-2399].) In contrast, polyneuropathy is an autoimmune neurological disorder characterized by progressive weakness and impaired sensory function in the legs and arms, and is caused by damage to the myelin sheath (the fatty covering of the nerve fibers). (Office of Communications and Public Liaison, National Institute of Neurological Disorders and Stroke, National Institutes of Health, Chronic Inflammatory Demyelinating Polyneuropathy [CIDP], available at https://www.ninds.nih.gov/Disorders/All-Disorders/Chronic-Inflammatory-Demyelinating-Polyneuropathy-CIDP-Information-Page [last updated May 25, 2017]; Matter of Klarer, 66 AD3d 247, 253 [2d Dept 2009].) In June 2007, Dr. Glenn Jakobsen, another doctor from the DOC who treated petitioner after the second incident, reported that petitioner was fully disabled due to "severe pain and spasm of the neck, low back and shoulders" and diagnosed petitioner with cervical and lumbar radiculopathy. In August 2007, petitioner applied to ERS for a disability benefit based upon his 2006 and 2007 injuries.

By report and recommendation dated April 24, 2008, the Medical Board conceded that "[d]ue to multiple injuries on June 30, 2006 and June 6, 2007," the conditions with which petitioner was diagnosed, including cervical and lumbar radiculopathy, were "permanent." At the request of ERS, petitioner had further EMG and NC studies in April 2010. The report contained findings of bilateral low lumbar radiculopathy and demyelinating polyneuropathy. By report dated May 21, 2010, the Medical Board deemed petitioner disabled and opined that demyelinating polyneuropathy was the "competent causal factor" and not radiculopathy. However, the Medical Board failed to explain why it credited polyneuropathy over radiculopathy [*3]as the cause and recommended that petitioner's application be denied. On January 10, 2011, the Board reaffirmed{**60 Misc 3d at 611} its recommendation, again without explaining why radiculopathy did not cause petitioner's disability. On May 20, 2011, petitioner was notified that the Trustees adopted a resolution denying his disability retirement benefit. Petitioner then commenced a CPLR article 78 proceeding, claiming that the Trustees' decision was "arbitrary, capricious, unreasonable and unlawful." By judgment dated June 20, 2012, Justice Vaughan granted the petition solely to the extent of remanding it for further consideration of petitioner's lumbar radiculopathy claim.

Upon remand, the Medical Board, in a report dated March 25, 2013, stated that "it cannot be determined with likelihood that radiculopathy was the foundation of those findings [as to the causation of disability]" and again recommended denial. Petitioner subsequently submitted further medical evidence which repeatedly demonstrated that he had radiculopathy, that he continued to suffer pain in the neck, shoulders and lower back, and that his disability resulted from his work related injuries. On January 12, 2015, the Medical Board conducted another examination and concluded that petitioner's disability was caused by diabetes-related peripheral polyneuropathy; this determination was based mainly on a toe lesion which the Medical Board claimed to be associated with diabetic polyneuropathy. On January 21, 2016, the Medical Board again recommended denial based on the "overwhelming evidence submitted indicating diabetic neuropathy as the cause of disability."

At a meeting held on May 12, 2016, the Trustees adopted a resolution denying petitioner's application for disability retirement benefits. The minutes of the meeting reveal that petitioner explained that he developed the blister on his toe as a result of new shoes and fully summarized the numerous findings that he suffered from radiculopathy following the 2006 and 2007 inmate incidents. Dr. Bottner, who spoke on behalf of the Medical Board, conceded that petitioner had tested positive for radiculopathy, but explained it away with the claim that "his physical examination was inconsistent with the disabling lumbar radiculopathy" and that "electrical findings in and of themselves don't constitute a disability." The Board pointed to certain physical findings including that petitioner "didn't have a positive straight leg raising" and that there was "evidence of decreased reflexes in his lower extremities," to prove that petitioner's disability was not related to radiculopathy, but did{**60 Misc 3d at 612} not note the relevance of these findings in relation to his disability.

Retirement and Social Security Law § 507-c (a) provides:

"Any member . . . of the New York city department of correction, who becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as a natural and proximate result of, an act of any inmate . . . shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary."

The legislative history of Retirement and Social Security Law § 507-b reveals that "the statute was clearly intended to compensate correction officers who, because of the risks created by their daily contact with certain persons who are dangerous . . . become permanently disabled." (Matter of Laurino v DiNapoli, 132 AD3d 1057, 1058 [3d Dept 2015].)

The determination as to an applicant's eligibility for disability retirement benefits involves a multiple step process. First, the applicant has the burden of establishing as a threshold matter that his claimed disability "was the natural and proximate result of an act of any inmate." (See Matter of Stevens v DiNapoli, 155 AD3d 1294, 1295 [3d [*4]Dept 2017] [In order to qualify for performance of duty disability retirement benefits under Retirement and Social Security Law § 507-b (a), which contains identical statutory language to Retirement and Social Security Law § 607-c (a), a correction officer in a county outside New York City must demonstrate as a threshold matter that his injuries were the result of his "direct interaction with an inmate"]; Matter of Naughton v DiNapoli, 127 AD3d 137, 139 [3d Dept 2015] [same]; Matter of Coleman v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 224 AD2d 522, 523 [2d Dept 1996] [To qualify for an accident disability benefit, petitioner has burden of establishing causal relationship between service-related accident in the New York City Fire Department and claimed disability].) Second, the Medical Board must conduct its own medical examination of the applicant, consider the medical evidence submitted by the applicant, and determine whether the applicant is physically or mentally incapacitated for the performance of duties. (Administrative Code of City of NY § 13-168 [a].) Third, if the Medical Board determines that the applicant is in fact disabled,{**60 Misc 3d at 613} it must then advise the Trustees as to whether the disability was the natural and proximate cause of the injury sustained through inmate contact. (Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996].) While the Trustees must accept the Medical Board's finding that the applicant is disabled, it must make its own independent evaluation as to the Medical Board's recommendation regarding causation. (Schlesinger v New York City Employees' Retirement Sys., 27 Misc 3d 1040, 1046 [Sup Ct, Kings County 2010], citing Borenstein, 88 NY2d at 760.) In Schlesinger, the court elaborated upon the Trustees' function, finding that it was not bound by the Medical Board's determination as to whether a disability resulted from a service-related accident: "The function and duty of determining the 'circumstances' of the disqualification and of determining the amount of the allowance as provided by the code is conferred upon the board of trustees." (27 Misc 3d at 1046.)

This court finds that petitioner has met his threshold burden of demonstrating that his disabling radiculopathy was the result of injuries he sustained upon being assaulted by inmates on June 30, 2006, and June 7, 2007. His claim is supported by ample evidence, including the reports of DOC's own doctor, Dr. Glenn Jakobsen, stating that petitioner was fully disabled due to severe pain and spasm of the neck, low back and shoulders, with a diagnosis of cervical and lumbar radiculopathy; EMG studies conducted at the request of ERS with findings of lumbar radiculopathy; and the Medical Board's own report dated April 24, 2008, which conceded that due to the injuries sustained by petitioner in 2006 and 2007, the conditions with which petitioner was diagnosed, including cervical and lumbar radiculopathy, were permanent. Furthermore, there is nothing in the medical records indicating that petitioner suffered from radiculopathy prior to the inmates' assault. Therefore, petitioner has met his threshold burden.

The second and third steps in determining eligibility for disability benefits were properly followed as well. The Medical Board conducted its own medical examination and considered the medical evidence submitted by petitioner and deemed him disabled. The Board then made a recommendation to the Trustees regarding lack of causation between the inmate assaults and petitioner's disability.

However, this court finds that the Trustees conducted an inadequate independent evaluation as to the causation of{**60 Misc 3d at 614} petitioner's incapacity to perform his work duties. Generally, the Trustees' decision as to the cause of an officer's disability will not be disturbed "unless its factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious." (Schlesinger, 27 Misc 3d at 1046, citing Matter of Canfora v [*5]Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347, 351 [1983].) However, the courts have not established specific criteria for determining the adequacy of such an evaluation pursuant to Retirement and Social Security Law § 507-c (a). This court thus looks to decisions interpreting Retirement and Social Security Law § 607-c (a), which governs disability retirement benefits for New York correction officers outside New York City, as sections 507-c (a) and 607-c (a) relate to the same subject matter and are deemed to be "in para materia," meaning that they are "construed together as though forming part of the same statute" (Khela v Neiger, 85 NY2d 333, 336 [1995]; Matter of London Terrace Assoc., L.P. v New York State Div. of Hous. & Community Renewal, 35 Misc 3d 525, 534 [Sup Ct, NY County 2012]). The court also looks to decisions interpreting General Municipal Law § 207-k (a) (disability retirement benefit for police officers) for a general standard to be used when weighing medical evidence.

The first criterion is that before denying disability retirement benefits, the Trustees must demonstrate that any connection between the inmates' actions and petitioner's injuries was "too attenuated to afford coverage under the statute." (See Allesandro v DiNapoli, 68 AD3d 1592, 1594 [3d Dept 2009] [denial of correction officer's claim for accidental and performance of duty disability retirement benefits under Retirement and Social Security Law § 607-c (a) was proper because of substantial evidence that injuries suffered in two incidents were not sustained by, or as the natural and proximate result of, an act of an inmate, and any connection between the inmate's actions and petitioner's injury was "too attenuated to afford coverage"]; Matter of Egiziaco v Office of Comptroller State of N.Y., 15 AD3d 747 [3d Dept 2005] [inmates did not cause correction officer to slip and fall on ice, and any connection between inmate conduct and resulting injury was too attenuated to bring it within coverage of Retirement and Social Security Law § 607-c (a)].)

This court finds that the Trustees failed to satisfy this criterion. At the Trustees' meeting on May 12, 2016, when Chairperson{**60 Misc 3d at 615} Adler questioned Dr. Bottner of the Medical Board to summarize why lumbar radiculopathy was not the source of petitioner's liability, Dr. Bottner responded that "there were other issues causing his complaints besides lumbar radiculopathy." This was a concession that lumbar radiculopathy, which was undisputably caused by petitioner's contact with the inmates, at least partly caused his disability. Thus, any connection between the inmates' actions and petitioner's injuries was not "attenuated" and the Trustees should have pried further in their evaluation.

The second criterion is that the Trustees may not pick and choose evidence which weighs against a finding that the disability resulted from work related injuries without explaining why it is more valid than probative and consistent evidence that it was in fact work related. (See Matter of Francese v Kelly, 2010 NY Slip Op 31147[U] [Sup Ct, NY County 2010] [Medical Board may not "cherry pick" portions of reports it received or disregard information that does not support its position without including them or discussing them]; Matter of Loud v Kelly, 2010 NY Slip Op 30116[U] [Sup Ct, NY County 2010] [same]; Matter of Athanassiou v Kelly, 2009 NY Slip Op 31651[U] [Sup Ct, NY County 2009] [same].)^[FN*] [*6]This court finds that the Trustees fail this criterion by accepting, without an independent review or explanation, the Medical Board's determination regarding causation, which was based on cherry picked evidence of polyneuropathy. Neither the Medical Board nor the Trustees explained why evidence of polyneuropathy was more credible than incontrovertible reports that petitioner was diagnosed with radiculopathy and suffered from severe back, neck, and shoulder pain following the inmates' attacks upon him. In fact, the Trustees' denial letter to petitioner, dated May 13, 2016, provides no explanation whatsoever for its denial.

Furthermore, this court finds that the Trustees' decision was arbitrary and capricious. A determination is deemed arbitrary{**60 Misc 3d at 616} and capricious if it "is without sound basis in reason and is generally taken without regard to the facts." (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; Matter of Finck v Kelly, 2012 NY Slip Op 30135[U] [Sup Ct, NY County 2012].) The Trustees' decision was arbitrary and capricious because it flies in the face of the undisputed fact that the DOC doctors who examined and treated petitioner immediately following the two incidents in 2006 and 2007 consistently found that petitioner was not able to perform his work duties due to severe pain in the neck, lower back and shoulders following the inmates' assaults, and that he was diagnosed with radiculopathy. The decision was also made without regard to the EMG findings of radiculopathy.

In light of the above, this court annuls the Trustees' determination to deny petitioner disability benefits and directs respondents to grant petitioner disability benefits retroactive to May 12, 2016, the date upon which his application was denied.